The Montana Supreme Court finally handed down its long-awaited ruling on the so-called Mitchell Slough case. Brought by the Bitterroot River Protective Association, the appeal challenged the right of "rich out-of-state landowners" to limit public access to the Mitchell Slough. The plaintiffs argued that the Mitchell is a "natural, perennial-flowing stream" and as such is open to access by the public under Montana's Stream Access Law. The state Supreme Court bought BRPA's argument and reversed a lower-court ruling denying public access.
The fact that the lower court found the Mitchell to be man-made while the Supreme Court found the opposite illustrates the slippery nature of the definition. Like so many legal battles, however, the technical legal sparring in the Mitchell case missed two truly important implications of the decision.
The first is the implication of this and previous decisions for the sanctity of private property. The Montana Supreme Court's decision asserts that "the landowners are entitled to every expectation of peaceful enjoyment of their property and the exclusive use thereof, excepting only the public's right to recreate as provided by the Stream Access Law on the water and on the banks of the Mitchell 'up to the ordinary high-water mark' " (emphasis added). Once the court found the Mitchell was a natural stream, it had no choice but to follow precedent and allow the exception to peaceful enjoyment.
But think about the word "excepting" in a broader context. Suppose the court found that you, as a homeowner, "are entitled to every expectation of peaceful enjoyment of your home and exclusive use thereof, excepting … ." What are the limits on excepting?
In the famous case of Kelo v. City of New London (2005), the U.S. Supreme Court allowed the taking of Suzette Kelo's home for a private development, albeit one that has never been built. Might the court have said, "peaceful enjoyment and exclusive use thereof, excepting when the city wants to take your house for a private development" using the guise that the private development is in the public interest?
Lest you think such examples are not a threat to your property rights, consider what Montana Gov. Brian Schweitzer said when he urged the appeal of the lower-court decision in the Mitchell case. In his words, "If you want to buy a big ranch and you want to have a river and you want privacy, don't buy in Montana." So much for peaceful enjoyment of your property.
The second implication of the Mitchell decision should be of concern to all sportsmen and women, namely, what does this do to the incentive for private landowners to be good resource stewards? In finding that the Mitchell Slough was not "man-made," the state Supreme Court said it was "man-improved." Indeed, the court's decision reads, "the residents [note the use of the word residents rather than landowners] have reconstructed the bed and banks of the watercourse, narrowed its channel, increased water velocities, and improved aesthetics and the fish and wildlife habitats." Before the improvements paid for by the landowners, there were no fish in the slough except when floods caused water to flow through it. It was the improvements recognized by the court that have made the slough a productive fishery. This should make the landowners prime candidates for a stewardship award from an association that proclaims to be a "river protective association."
Whether the habitat improvements were done by "rich out-of-staters" or fourth-generation Montana natives does not matter. Conditioning the right to peaceful enjoyment and exclusive use by allowing public access can only do one thing - reduce the incentive for private stewardship. I doubt the landowners along the Mitchell will destroy the habitat they created, but we have sent a clear message to any landowner considering such improvements. Don't.
Montana's fish and wildlife will weather yet another storm in the access battle because we are blessed with landowners who have an ethical commitment to wildlife conservation. As humans fight over who gets what, however, they should not be surprised if the fish and wildlife they profess to want to protect find a little less habitat, natural or man-made.
Terry L. Anderson is executive director of the Property and Environment Research Center in Bozeman and a senior fellow at the Hoover Institution, Stanford University.